If you’re defending a Texas motion to revoke probation (MTR), don’t forget to look at Article 42.12, Sec. 21(e) of the Texas Code of Criminal Procedure. Before the court has jurisdiction to hear the MTR, let alone revoke probation, the prosecutor must file the motion to revoke AND issue a capias for the arrest of the defendant before the termination of the probation period. It’s a small detail, but a detail with some bite left inside.
We recently defended such a case in Bryan-College Station. The client had been placed on misdemeanor community supervision for two (2) years. Prior to the termination of the supervison period the probation department successfully extended the client’s supervision for another year. We obtained a copy of the order extending probation and examined it closely. We also obtained a copy of the capias issued by the Brazos County District Clerk and discovered it was issued one day too late! Our motion to dismiss followed and was granted without a hearing once the the State looked closely at the details.
So, keep in mind Section 42.12 still has some punch for your clients facing criminal motions to revoke probation. Take some time and be assured the clerk’s office issued the capias before the probation term expired. You might be pleasantly surprised by what you find.
Stephen Gustitis is a criminal defense lawyer in Bryan-College Station. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is also a husband, father, and retired amateur bicycle racer.
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